IN THE INTERMEDIATE COURT OF APPEALS OF THE STATE OF HAWAI'I. ---o0o--

Transcription

1 IN THE INTERMEDIATE COURT OF APPEALS OF THE STATE OF HAWAI'I ---o0o-- STATE OF HAWAI'I, Plaintiff-Appellee, v. YONG SHIK WON, Defendant-Appellant. NO. CAAP APPEAL FROM THE DISTRICT COURT OF THE FIRST CIRCUIT HONOLULU DIVISION (CASE NO. 1DTA ) March 28, 2014 NAKAMURA, C.J., and FUJISE and GINOZA, JJ. OPINION OF THE COURT BY NAKAMURA, C.J. Defendant-Appellant Yong Shik Won (Won) was convicted of operating a vehicle under the influence of an intoxicant (OVUII), in violation of Hawaii Revised Statutes (HRS) 291E 61(a)(3) (Supp. 2013). 1 A police officer, who observed Won 1 HRS 291E-61(a)(3) provides: (a) A person commits the offense of operating a (continued...)

2 speeding, pulled Won over and subsequently arrested him for OVUII. At the police station, an officer read the "implied consent" form to Won, and Won agreed to take a breath test, which revealed an alcohol concentration above the legal limit. The police did not provide Won with Miranda warnings 2 before reading the implied consent form and obtaining his agreement to take the breath test. Prior to trial, Won moved to suppress the results of his breath test. The District Court of the First Circuit (District Court) denied Won's motion to suppress and found him guilty of violating HRS 291E-61(a)(3). 3 On appeal, Won argues that the District Court erred in denying his motion to suppress. Prior to 2011, it was settled law that a person arrested for OVUII was not entitled to Miranda warnings or to consult with an attorney before the police asked whether the arrestee would submit to testing. State v. Severino, 56 Haw. 378, 537 P.2d 1187 (1975). Won, however, contends that in light of the Legislature's recent enactment of HRS 291E-68, which beginning in 2011 made the refusal to submit to a breath, blood, or urine test a crime, the police were required to advise him of his Miranda rights before reading him the implied consent form and obtaining his decision on testing. Won argues that because the police failed to give him Miranda warnings, any statement he made in response to the reading of the implied (...continued) vehicle under the influence of an intoxicant if the person operates or assumes actual physical control of a vehicle:... (3) With.08 or more grams of alcohol per two hundred ten liters of breath[.] 2 See Miranda v. Arizona, 384 U.S. 436 (1966). 3 The Honorable David Lo presided. 2

3 consent form was inadmissible, and his breath test results should have been suppressed as the fruit of the Miranda violation. 3

4 In addition, Won argues that the results of his breath test should have been suppressed because the police violated his statutory right to an attorney under HRS (1993); 4 misinformed him of his statutory right to an attorney, and misinformed him of the sanctions for refusing to submit to testing under the provisions of the current statutory scheme. Won further argues that in light of the United States Supreme Court's recent decision in Missouri v. McNeely, 133 S. Ct (2013), HRS 291E-68 is unconstitutional; that because HRS 291E-68 is unconstitutional, he was misinformed of the sanctions for refusing to submit to testing since the implied consent form referred to sanctions under HRS 291E-68; and that based on McNeely, the police were required to obtain a search warrant before conducting his breath test. For the reasons set forth below, we hold that Won was not subjected to interrogation for purposes of Miranda and that the police did not violate Won's Miranda rights in obtaining his decision on testing; that Won has not met his burden of showing that McNeely rendered HRS 291E-68 unconstitutional; that Won does not prevail on his other arguments; and that the District Court did not err in denying Won's motion to suppress. 4 HRS 803-9, entitled "Examination after arrest; rights of arrested person[,]" provides in relevant part: It shall be unlawful in any case of arrest for examination: (1) To deny to the person so arrested the right of seeing, at reasonable intervals and for a reasonable time at the place of the person's detention, counsel or a member of the arrested person's family;... (4) In case the person arrested has requested that the person see an attorney or member of the person's family, to examine the person before the person has had a fair opportunity to see and consult with the attorney or member of the person's family[.] 4

5 Accordingly, we affirm Won's conviction. 5

6 BACKGROUND The following facts are based on police reports and related exhibits, which the parties stipulated into evidence. On April 20, 2011, at about 3:15 a.m., Honolulu Police Department (HPD) Officer Vincent Gonzales (Officer Gonzales) observed Won traveling faster than the posted speed limit. Officer Gonzales paced Won going at about 55 miles per hour (mph) in a 35 mph zone and subsequently stopped Won's vehicle. While speaking with Won, Officer Gonzales observed that Won had "red, watery, eyes[,]" and that he "emitted a strong odor of an alcoholic type beverage[.]" Officer Gonzales told Won that he "believed [Won] to be intoxicated" and asked Won to perform the Standardized Field Sobriety Tests (SFSTs), which Won agreed to perform. Won performed poorly on the SFSTs. Won agreed to take a Preliminary Alcohol Screening (PAS) test, which revealed a breath alcohol content of Based on these observations, HPD Sergeant Albert Lee arrested Won and Officer Gonzales transported Won to the police station. At the police station, Sergeant Lee presented Won with a copy of a form entitled, "Use of Intoxicants While Operating a Vehicle Implied Consent for Testing" (Implied Consent Form), and read the form to him. Specifically, the Implied Consent Form provided: Pursuant to chapter 291E, Hawaii Revised Statutes (HRS), Use of Intoxicants While Operating a Vehicle, you are being informed of the following: 1. Any person who operates a vehicle upon a public way, street, road, or highway or on or in the waters of the State shall be deemed to have given consent to a test or tests for the purpose of determining alcohol concentration or drug content of the persons [sic] breath, blood, or urine as applicable. 2. You are not entitled to an attorney before you submit to any test or tests to determine your alcohol and/or drug content. 5 Pursuant to HRS 291E-11 (2007), the results of a PAS test shall only be used in determining probable cause for an arrest, and Won's PAS test results are not at issue in this case. 6

7 3. You may refuse to submit to a breath or blood test, or both for the purpose of determining alcohol concentration and/or blood or urine test, or both for determining drug content, none shall be given, except as provided in section 291E-21. However, if you refuse to submit to a breath, blood, or urine test, you shall be subject to up to thirty days imprisonment and/or fine up to $1,000 or the sanctions of 291E-65, if applicable. In addition, you shall also be subject to the procedures and sanctions under chapter 291E, part III. (Emphasis added; formatting altered.) Won initialed the first and third enumerated paragraphs of the Implied Consent Form, but did not initial the second paragraph, stating that he "[did] not agree" with it and was "not going to initial" it. Won initialed the portion of the form that stated that he "[a]greed to take a breath test and refused the blood test[,]" and he signed and dated the form. Won's breath test showed a breath alcohol concentration of grams of alcohol per 210 liters of breath. Plaintiff-Appellee State of Hawai'i (State) charged Won by complaint with OVUII, in violation of HRS 291E-61(a)(1) and (a)(3). 6 The District Court granted Won's motion to dismiss the HRS 291E-61(a)(1) portion of the charge, and therefore the State only proceeded to trial on the alleged HRS 291E-61(a)(3) violation. Prior to trial, Won filed a suppression motion to preclude the State from introducing evidence of the results of his breath test. Won argued that the results of his breath test should be suppressed because: (1) he was mislead and/or inadequately advised as to his rights surrounding the breath test; (2) his Miranda rights were violated; (3) his statutory right to consult with an attorney pursuant to HRS was violated; and (4) his consent to take the breath test was coerced. The parties agreed that Won's suppression motion and trial would be decided on stipulated evidence, which included 6 The State also alleged that Won was subject to sentencing as a first offender in accordance with HRS 291E-61(b)(1) (Supp. 2013). 7

8 Won's police reports and related exhibits. The District Court denied Won's motion to suppress and found Won guilty of OVUII in violation of HRS 291E-61(a)(3). 7 The District Court sentenced Won to a fine of $500, a one-year revocation of his driver's license, 14 hours of substance abuse rehabilitation as well as substance abuse assessment and possible treatment, and various fees and assessments. The District Court entered its Judgment on October 25, After Won had filed his opening brief, the United States Supreme Court issued McNeely, a decision relating to non- consensual blood draws in OVUII cases. In light of McNeely, Won filed a motion for supplemental briefing. The State did not oppose Won's motion, which this court granted. Won and the State submitted supplemental briefs on the effect of McNeely on the instant case, and the Attorney General filed an amicus brief defending the constitutionality of Hawaii's implied consent law, set forth in HRS Chapter 291E. Oral argument was held on September 26, DISCUSSION I. A. "No one can seriously dispute the magnitude of the drunken driving problem or the States' interest in eradicating it." Michigan Dept. of State Police v. Sitz, 496 U.S. 444, 451 (1990). In 2012, 10,322 people were killed nationwide in alcohol-impaired driving crashes. See National Highway Traffic Safety Administration (NHTSA), Traffic Safety Facts, 2012 Motor Vehicle Crashes: Overview (No , Nov. 2013), In Hawai'i, there were 51 drunk driving fatalities in 2012, representing 41 percent of all 7 The Judgment indicates that Won violated "HRS [ ] 291E 61(a)(1)(3)(b)(1)." However, as noted supra, the record shows that the (a)(1) portion of the charge was dismissed, and the State proceeded only on the (a)(3) portion of the charge. 8

9 traffic deaths for that year. Id. 9

10 "[A]ll 50 States have adopted implied consent laws that require motorists, as a condition of operating a motor vehicle within the State, to consent to BAC [(blood alcohol concentration)] testing if they are arrested or otherwise detained on suspicion of a drunk-driving offense." McNeely, 133 S. Ct. at The Hawai'i Legislature enacted our implied consent statute in 1967 to reduce deaths, injuries, and damages arising out of highway traffic accidents. See 1967 Haw. Sess. Laws Act 214, at 1. In declaring its purpose in 1967 for enacting the implied consent statute, the Legislature stated: Deaths of persons and injuries to them and damages to property with the other losses suffered on account of highway traffic accidents are of grave concern to the State and its citizens as well as to the federal government. The legislature finds and declares that it is in the public interest that the State initiate, coordinate and accelerate every available means to decrease the fatalities, injuries, damages and losses resulting from highway traffic accidents. Id. The implied consent and testing provisions of Hawai'i's statutory scheme are currently set forth in HRS Chapter 291E, Part II. Under Hawai'i's statutory scheme, a person who drives on a public road is deemed to have consented to undergo chemical testing for alcohol or drugs, as prescribed by HRS Chapter 291E, Part II. HRS 291E-11 (2007), provides in relevant part: (a) Any person who operates a vehicle upon a public way, street, road, or highway or on or in the waters of the State shall be deemed to have given consent, subject to this part, to a test or tests approved by the director of health of the person's breath, blood, or urine for the purpose of determining alcohol concentration or drug content of the person's breath, blood, or urine, as applicable. (b) The test or tests shall be administered at the request of a law enforcement officer having probable cause to believe the person operating a vehicle upon a public way, street, road, or highway or on or in the waters of the State is under the influence of an intoxicant or is under the age of twenty-one and has consumed a measurable amount of alcohol, only after: (1) A lawful arrest; and (2) The person has been informed by a law enforcement officer that the person may refuse to submit to testing under this chapter. 10

11 (c) If there is probable cause to believe that a person is in violation of... section 291E-61 or 291E-61.5,[ 8 ] as a result of having consumed alcohol, then the person shall elect to take a breath or blood test, or both, for the purpose of determining the alcohol concentration. (Emphasis added.) If a person under arrest for OVUII refuses to submit to breath, blood, or urine testing, "none shall be given," HRS 291E-15 (Supp. 2013), 9 except that in the event there is a collision resulting in injury or death, a law enforcement officer is not required to accept the person's refusal to undergo testing. Id.; HRS 291E-21 (2007) HRS 291E-61 sets forth the criminal offense of OVUII and HRS 291E-61.5 sets forth the criminal offense of Habitual OVUII. 9 HRS 291E-15 provides: If a person under arrest refuses to submit to a breath, blood, or urine test, none shall be given, except as provided in section 291E-21. Upon the law enforcement officer's determination that the person under arrest has refused to submit to a breath, blood, or urine test, if applicable, then a law enforcement officer shall: (1) Inform the person under arrest of the sanctions under section 291E-41, 291E-65, or 291E-68; and (2) Ask the person if the person still refuses to submit to a breath, blood, or urine test, thereby subjecting the person to the procedures and sanctions under part III or section 291E-65, as applicable; provided that if the law enforcement officer fails to comply with paragraphs (1) and (2), the person shall not be subject to the refusal sanctions under part III or IV. 10 HRS 291E-21 provides in relevant part: (a) Nothing in this part shall be construed to prevent a law enforcement officer from obtaining a (continued...) 11

12 Prior to 2011, if a person failed to honor his or her implied consent and refused to submit to chemical sobriety testing as prescribed by HRS Chapter 291E, the person was subject to administrative sanctions in the form of revocation of his or her driver's license and referral for substance abuse assessment and treatment. See HRS 291E-41 (2007), 291E-65 (2007). The administrative sanctions remain in effect. However, effective January 1, 2011, the Legislature enacted HRS 291E-68, which imposed additional criminal sanctions for the refusal to submit to a breath, blood, or urine test. See 2010 Haw. Sess. Laws Act 166, 2, 26, at 398, 415. In its current form, HRS 291E-68 (Supp. 2013) provides: "Except as provided in section 291E 65,[ 11 ] refusal to submit to a breath, blood, or urine test as required by part II is a petty misdemeanor." Under the Hawai'i Penal Code, a person convicted of a petty misdemeanor may be sentenced to imprisonment for a term not to exceed thirty days, and may be sentenced to pay a fine not exceeding $1,000. See HRS (1993), (Supp. 2013). Accordingly, under the statutory scheme, except for cases involving collisions resulting in death or injury, the Hawai'i Legislature has chosen to avoid violent police-citizen confrontations as a means of securing chemical sobriety test results. Instead of authorizing the police to force persons arrested in the typical OVUII case to undergo chemical testing based on their implied consent, the Hawai'i Legislature has chosen to use the threat of administrative and criminal sanctions 10 (...continued) sample of breath, blood, or urine, from the operator of any vehicle involved in a collision resulting in injury to or the death of any person, as evidence that the operator was under the influence of an intoxicant. 11 HRS 291E-65 (Supp. 2013) pertains to sanctions for persons under the age of twenty-one who are arrested for operating a vehicle after consuming a measurable amount of alcohol and who refuse to submit to testing. 12

13 to encourage arrestees to submit to testing. 12 "[T]he effect of implied consent legislation 'is to equip [law enforcement] officers with an instrument of enforcement not involving physical compulsion.'" Rossell v. City and County of Honolulu, 59 Haw. 173, 182, 579 P.2d 663, 669 (1978) (citation omitted). The Legislature's "obvious reason" for permitting persons, deemed to have given consent as a matter of law, to refuse testing "is to avoid the violence which would often attend forcible tests upon recalcitrant inebriates." Id. B. Won argues that in light of the recent enactment of HRS 291E-68, which makes refusing to submit to a breath, blood, or urine test a crime, the police were required to give him Miranda warnings before reading the Implied Consent Form to him and obtaining his decision regarding testing. Won contends that because the police failed to advise him of his Miranda rights, any statement he made in response to the Implied Consent Form was inadmissible and the results of his breath test should have been suppressed as the "Fruit of the Poisonous Tree." We disagree. At least fourteen other states, like Hawai'i, have enacted implied consent laws that impose criminal sanctions on a driver for refusing to submit to chemical testing, either as a separate offense or as an element authorizing the imposition of 12 Won's case is a "typical" OVUII case in that: (1) he was arrested on probable cause to believe that he was OVUII, in violation of HRS 291E-61, as a result of having consumed alcohol; (2) Won was not "operating a vehicle involved in a collision resulting in injury to or death of any person," see HRS 291E-21; and (3) Won was not arrested for operating a vehicle with a measurable amount of alcohol while under the age of twenty-one, in violation of HRS 291E-64 (2007). Our analysis in this case is limited to the provisions of HRS Chapter 291E which apply to a "typical" OVUII case like Won's case. We do not address or analyze other provisions of HRS Chapter 291E, such as those applicable to cases involving the operation of a vehicle involved in a collision resulting in death or injury or the operation of a vehicle by a person under twenty-one with a measurable amount of alcohol. 13

14 an increased sentence for a driver found to have operated a vehicle under the influence of an intoxicant. 13 It appears that all the courts from other jurisdictions that have considered implied consent laws imposing such criminal sanctions in the context of challenges, like that raised by Won, alleging Miranda violations or violations of the protection against self- incrimination, have rejected those challenges. These courts have held that a driver's refusal to submit to testing is not a "testimonial communication" and that the conduct of the police in determining whether the driver refuses to submit to testing does not constitute "interrogation" for Miranda purposes. Accordingly, they have held the actions of the police in determining whether the driver refuses to submit to testing does not implicate the driver's Miranda rights or the protection against self-incrimination. As explained below, we join what appears to be the uniform view of every other court that has considered the issue raised by Won, under laws similar to Hawai'i's that impose criminal sanctions on a driver's refusal to submit to testing, 13 These states are: Alaska, California, Florida, Iowa, Kansas, Louisiana, Maine, Minnesota, Nebraska, Ohio, Pennsylvania, Rhode Island, Vermont, and Virginia. See Alaska Stat. Ann , (West, Westlaw through 2013 Sess.); Cal Veh. Code 23538, (West, Westlaw through Ch. 4 of 2014 Sess.); Fla. Stat. Ann , (West, Westlaw through 2013 Sess.); Iowa Code Ann. 321J.2(3)(b)(2)(d) (West, Westlaw through 2013 Sess.); Kansas Stat. Ann (West, Westlaw through 2013 Reg. & Special Sess.); La. Stat. Ann. 14:98.2, 32:666 (West, Westlaw through 2013 Sess.); Me. Rev. Stat. tit. 29-A, 2411(5)(A)(3)(b) (West, Westlaw through 2013 Sess.); Minn. Stat. Ann. 169A.20, 169A.26(1)(b) (West, Westlaw through Ch. 147 of 2014 Sess.); Neb. Rev. Stat. Ann. 60-6,197, 60-6, (West, Westlaw through 2013 Sess.); Ohio Rev. Code Ann (A)(2), (G)(1)(a)(ii) (West, Westlaw through 2013 Sess.); 75 Pa. Cons. Stat. Ann. 3804(c) (West, Westlaw through Reg. Sess. Act ); R.I. Gen. Laws Ann (West, Westlaw through Ch. 534 of 2013 Sess.); Vt. Stat. Ann. tit. 23, 1201, 1202 (West, Westlaw through 2013 portion of Legis. Sess.); Va. Code Ann (West, Westlaw through 2013 Sess.). 14

15 and hold that the conduct of the police in this case did not violate Won's Miranda rights. 14 The police were not required to give Miranda warnings to Won before reading the Implied Consent Form to him or obtaining his decision regarding testing. Accordingly, the results of Won's breath test was not subject to suppression as the fruit of a Miranda violation. C. 1. The requirements imposed by Miranda v. Arizona, 384 U.S. 436 (1966), were designed to safeguard a defendant's privilege against compulsory self-incrimination. See Rhode Island v. Innis, 446 U.S. 291, 297 (1980). In Miranda, "the Court concluded that in the context of 'custodial interrogation' certain procedural safeguards are necessary to protect a defendant's Fifth and Fourteenth Amendment privilege against compulsory self-incrimination." Innis, 446 U.S. at "The concern of the Court in Miranda was that the 'interrogation environment' created by the interplay of interrogation and custody would 'subjugate the individual to the will of his examiner' and thereby undermine the privilege against compulsory self-incrimination." Id. at 299 (citation omitted). In State v. Santiago, 53 Haw. 254, 492 P.2d 657 (1971), the Hawai'i Supreme Court held that "the protections which the United States Supreme Court enumerated in Miranda have an independent source in the Hawai'i Constitution's privilege 14 We note that in his briefs on appeal, Won has not cited any case construing laws similar to Hawai'i's that impose criminal sanctions on a driver's refusal to submit to testing, in which the court held that the driver was entitled to Miranda warnings before the police could determine whether he or she would submit to testing. 15 The Fifth Amendment to the United States Constitution provides in relevant part: "No person... shall be compelled in any Criminal Case to be a witness against himself...." U.S. Const. amend V. The Fifth Amendment privilege against self- incrimination was made applicable to the states pursuant to the Fourteenth Amendment. See Malloy v. Hogan, 378 U.S. 1, 5 (1964). 15

16 against self-incrimination[,]" which is now set forth in Article I, Section 10 of the Hawai'i Constitution. 16 Santiago, 53 Haw. at 266, 492 P.2d at 664; State v. Ketchum, 97 Hawai'i 107, 116 & n.14, 34 P.3d 1006, 1015 & n.14 (2001). Thus, as a matter of state constitutional law, article I, section 10 requires that before reference is made at trial to statements made by the accused during custodial interrogation, the prosecutor must first demonstrate that certain safeguards were taken before the accused was questioned.... [T]he prosecutor must show that each accused was warned that he [or she] had a right to remain silent, that anything said could be used against him [or her], that he [or she] had a right to the presence of an attorney, and that if he [or she] could no[t] afford an attorney one would be appointed for him [or her].... [U]nless these protective measures are taken, statements made by the accused may not be used either as direct evidence in the prosecutor's case in chief or to impeach the defendant's credibility during rebuttal or cross-examination. Ketchum, 97 Hawai'i at 116, 34 P.3d at 1015 (footnote omitted; brackets and ellipsis points in original) (quoting Santiago, 53 Haw. at 266, 492 P.2d at 664). 2. Miranda warnings are required when two conditions are met: (1) the defendant must be in custody; and (2) the defendant must be under interrogation. Id. at , 34 P.3d at There is no dispute that for Miranda purposes, Won was in custody when the police presented him with the Implied Consent Form. Thus, the critical question in this case is whether Won was "under interrogation" when the Implied Consent Form was read to him. In Innis, the Supreme Court explained that not all 16 Specifically, Article I, Section 10 of the Hawai'i Constitution provides in relevant part: "nor shall any person be compelled in any criminal case to be a witness against oneself." Haw. Const. art. I, 10. When Santiago was decided, this identical language of Article I, Section 10 was contained in Article I, Section 8 of the Hawai'i Constitution, except the term "himself" was used instead of "oneself." See State v. Ketchum, 97 Hawai'i 107, 116 & n.14, 34 P.3d 1006, 1015 & n.14 (2001). 16

17 statements obtained by the police after a suspect has been taken into custody are "to be considered the product of interrogation." Innis, 446 U.S. at 299. Rather "the special procedural safeguards outlined in Miranda" only apply where a suspect is both taken into custody and "is subjected to interrogation." Id. at 300. The Court explained that "'[i]nterrogation,' as conceptualized in the Miranda opinion, must reflect a measure of compulsion above and beyond that inherent in custody itself." Id. In Innis, the Court held that "the term 'interrogation' under Miranda refers not only to express questioning, but also to any words or actions on the part of the police (other than those normally attendant to arrest and custody) that the police should know are reasonably likely to elicit an incriminating response from the suspect." Id. at 301 (footnote omitted). Subsequently, the Court clarified that it did not create an automatic booking exception to Miranda for "any question asked during the booking process[.]" Pennsylvania v. Muniz, 496 U.S. 582, 602 n.14 (1990) (internal quotation marks and citation omitted). The Court explained that "[w]ithout obtaining a waiver of the suspect's Miranda rights, the police may not ask questions, even during booking, that are designed to elicit incriminatory admissions." Id. (internal quotation marks and citation omitted). In Ketchum, the Hawai'i Supreme Court stated that in general, "interrogation" for Miranda purposes means "express questioning or its functional equivalent[,]" and whether the police have "subjected a person to 'interrogation' is determined by objectively assessing the 'totality of the circumstances.'" Ketchum, 97 Hawai'i at 119, 34 P.3d at 1018 (some internal quotation marks and citations omitted). "[T]he ultimate question becomes 'whether the police officer should have known that his or her words or actions were reasonably likely to elicit an incriminating response' from the person in custody." Id. (brackets and citation omitted). In determining whether "interrogation" has occurred under the totality of the 17

18 circumstances, a court must "focus upon the officer's conduct, the nature of the question (including whether the question is a 'routine booking question'), and any other relevant circumstance." Id. at 121, 34 P.3d at 1020 (footnote omitted). 3. In addition, both the United States Supreme Court and the Hawai'i Supreme Court have drawn a distinction between a suspect being compelled to provide testimonial communications and being compelled to become the source of real or physical evidence. The protections of Miranda and the privilege against self-incrimination only apply to testimonial communications. See Muniz, 496 U.S. at , (stating that the privilege against self-incrimination does not protect a suspect from being compelled to produce real or physical evidence, but only from being compelled to provide the government with evidence of a testimonial or communicative nature, and that Miranda protections applied to verbal statements "that were both testimonial in nature and elicited during custodial interrogation"); State v. Wyatt, 67 Haw. 293, , 687 P.2d 544, 551 (1984) (concluding that the police conduct of a field sobriety test did not implicate the privilege against self-incrimination because the State did not seek "communications" or "testimony" from the defendant); State v. Bowers, 548 N.W.2d 725, 731 (Neb. 1996) ("Miranda implicates only statements that are both testimonial in nature and elicited during custodial interrogation."). To be protected by Miranda, the "incriminating response" by a suspect in custody "must be testimonial in nature." Ketchum, 97 Hawai'i at 130, 34 P.3d at 1029 (Acoba, J., concurring and dissenting); see Muniz, 496 U.S. at 590, 600; United States v. Rodriguez-Garcia, 983 F.2d 1563, 1568 (10th Cir. 1993) ("Consenting to a search is not 'evidence of a testimonial or communicative nature' which would require officers to first present a Miranda warning."). In order to be testimonial, the suspect's communication must itself "relate to a factual assertion or disclose information." Muniz, 496 U.S. at

19 (internal quotation marks and citation omitted); Ketchum, 97 Hawai'i at 130, 34 P.3d at 1029 (Acoba, J., concurring and dissenting). D. We first address Schmerber v. California, 384 U.S. 757 (1966), and South Dakota v. Neville, 459 U.S. 553 (1983), United States Supreme Court decisions which examined the implications of Miranda and the Fifth Amendment in the context of a compelled blood draw of a defendant suspected of OVUII 17 and an implied consent statute authorizing the use of evidence of the defendant's refusal to undergo testing in an OVUII prosecution. We next discuss the Hawai'i Supreme Court's decision in Severino, which held that an OVUII arrestee was not entitled to Miranda warnings or to consult with an attorney before the police determined whether he would submit to testing, under Hawai'i's then-existing implied consent statute. We then consider cases from other jurisdictions that have considered Miranda and selfincrimination claims in the context of implied consent statutes, which, like Hawai'i's current statute, impose criminal sanctions for refusal to submit to chemical testing. 1. In Schmerber, the police arrested Schmerber for OVUII and directed a doctor to withdraw a blood sample for alcohol testing, despite Schmerber's refusal to consent to the test. Schmerber, 384 U.S. at The results of this blood-alcohol test were admitted at trial and used to convict Schmerber of OVUII. Id. at 759. Schmerber appealed on several grounds, including that the withdrawal of his blood and the admission in evidence of the blood-test analysis violated his Fifth Amendment privilege against self-incrimination. Id. at When referring to cases or statutes from other jurisdictions, we will use OVUII to generically refer to offenses prohibiting the operation of a vehicle while impaired by, or with specific levels of, alcohol or drugs. 19

20 In addressing Schmerber's argument, the Court stated that the critical question was whether Schmerber was "compelled to be a witness against himself." Id. at 761 (internal quotation marks omitted). The Court rejected Schmerber's claim that the blood-test evidence should have been suppressed because it was obtained in violation of his Fifth Amendment privilege against self-incrimination. The Court held that: the privilege protects an accused only from being compelled to testify against himself, or otherwise provide the State with evidence of a testimonial or communicative nature, and that the withdrawal of blood and use of the analysis in question in this case did not involve compulsion to these ends. Id. (footnote omitted; emphasis added). The Court noted that courts have typically held that the Fifth Amendment "offers no protection against compulsion to submit to fingerprinting, photographing, or measurements, to write or speak for identification, to appear in court, to stand, to assume a stance, to walk, or to make a particular gesture." Id. at 764. The Court explained that the distinction which has emerged "is that the privilege is a bar against compelling 'communications' or 'testimony,' but that compulsion which makes a suspect or accused the source of 'real or physical evidence' does not violate it." Id. The Court concluded that although the blood-test evidence was "an incriminating product of compulsion," it was not testimonial or communicative in nature, and it therefore "was not inadmissible on privilege grounds." Id. at In Neville, the Court considered whether the admission in evidence of Neville's refusal to take a blood-alcohol test, pursuant to South Dakota's implied consent statute that authorized the use of such refusal evidence in a criminal OVUII trial, would violate Neville's privilege against self- incrimination. Neville, 459 U.S. at The Court held that the admission of the refusal evidence would not violate Neville's 20

21 privilege against self-incrimination. Id. at 554. It also concluded that the police inquiry into whether a suspect will take a blood-alcohol test, pursuant to an implied consent statute, does not constitute interrogation within the meaning of Miranda. Id. at 564 n.15. The Court noted that Schmerber held that since a blood test was "'physical or real' evidence rather than testimonial evidence," it was unprotected by the Fifth Amendment. Id. at Therefore, the Court reasoned that Schmerber "clearly allows a State to force a person suspected of driving while intoxicated to submit to a blood alcohol test." Id. The Court explained, however, that "to avoid violent confrontations," South Dakota "has declined to authorize its police officers to administer a blood-alcohol test against the suspect's will." Id. Instead, the South Dakota statute permits a suspect to refuse the test and requires the police to inform the suspect of his right to refuse. Id. at The Court, however, stated that "[t]his permission is not without a price," as the South Dakota law authorizes the imposition of the sanction of license revocation for one year for a person who refuses to take the test. Id. at 560. In addition, "South Dakota further 18 The Court also noted that Schmerber had also rejected arguments that the coerced blood test violated the rights to due process and counsel, and the prohibition against unreasonable searches and seizures. Id. at 559 n.8. 21

22 discourages the choice of refusal by allowing the refusal to be used against the defendant at [a criminal OVUII] trial." Id. The Court held that the sanctions for refusal imposed by the South Dakota statutory scheme did not violate the Fifth Amendment. The Court explained that South Dakota "did not directly compel [Neville] to refuse the test, for it gave him the choice of submitting to the test or refusing[,]" id. at 562, and that "the values behind the Fifth Amendment are not hindered when the state offers a suspect the choice of submitting to the blood-alcohol test or having his refusal used against him." Id. at 563. It stated that "[t]he simple blood-alcohol test is so safe, painless, and commonplace... that the state could legitimately compel the suspect, against his will, to accede to the test." Id. The Court concluded that since the offer of taking a blood-alcohol test is clearly legitimate, the action becomes no less legitimate when the State offers a second option of refusing the test, with the attendant penalties for making that choice. Nor is this a case where the State has subtly coerced respondent into choosing the option it had no right to compel, rather than offering a true choice. To the contrary, the State wants respondent to choose to take the test, for the inference of intoxication arising from a positive blood-alcohol test is far stronger than that arising from a refusal to take the test. Id. at (some emphasis added). The Court recognized that the choice to submit to or refuse a blood-alcohol test is not an easy or pleasant one for a suspect, but it stated that "the criminal process often requires suspects and defendants to make difficult choices." Id. at 564. The Court held that the refusal to take a blood-alcohol test lawfully requested by a police officer, "is not an act coerced by the officer, and thus not protected by the privilege against self-incrimination." Id. The Court also addressed the Miranda implications of a police officer's asking a suspect whether he or she will take a blood-alcohol test pursuant to an implied consent statutory scheme. The Court concluded: 22

23 In the context of an arrest for driving while intoxicated, a police inquiry of whether the suspect will take a blood-alcohol test is not an interrogation within the meaning of Miranda. As we stated in Rhode Island v. Innis, 446 U.S. 291, 301, 100 S. Ct. 1682, 1689, 64 L. Ed.2d 297 (1980), police words or actions "normally attendant to arrest and custody" do not constitute interrogation. The police inquiry here is highly regulated by state law, and is presented in virtually the same words to all suspects. It is similar to a police request to submit to fingerprinting or photography. [Neville's] choice of refusal thus enjoys no prophylactic Miranda protection outside the basic Fifth Amendment protection. Id. at 564 n.15 (emphases added). 3. In Severino, the Hawai'i Supreme Court held that an OVUII arrestee was not entitled to Miranda warnings or to consult with counsel before the police asked whether the arrestee would submit to chemical testing under the 1974 version of Hawaii's implied consent law. Severino, 56 Haw. at , 537 P.2d at The court concluded that because actions taken under the implied consent law are civil in nature, "a motorist is not entitled to consult with counsel before deciding to submit to the chemical test prescribed by the implied consent statute." Id. The court further held that an OVUII arrestee is not entitled to the Miranda warnings prior to being required to submit to the chemical tests prescribed by statute, inasmuch as the Miranda rights are not applicable to implied consent proceedings. He is deemed by law to have given his prior consent. Id. at 381, 537 P.2d at 1189 (internal citation omitted). Severino had been arrested for OVUII and was advised of his Miranda rights and the requirements and sanctions of the implied consent law. Id. at 380, 537 P.2d at Severino refused to answer questions and refused to take any chemical tests for alcohol until he spoke to a lawyer. Id. His driver's license was revoked based on his refusal to submit to testing. Id. at 379, 537 P.2d at The court held that although the police were not required to provide Severino with Miranda warnings before determining whether he would submit to testing, because the police had given him Miranda warnings, they were 23

24 required to make clear that the Miranda rights did not apply to Servino's decision on whether to submit to chemical testing. Id. at , 537 P.2d at However, the police did not make clear to Severino that his Miranda rights did not apply to this decision. Id. at 382, 537 P.2d at The court reversed the revocation of Severino's license, concluding that he had been misled by the Miranda warnings into believing that he had a right to remain silent and to refuse to submit to the test until he had consulted with his lawyer. Id. 4. Won contends that the Hawai'i Supreme Court's holding in Severino that an OVUII arrestee is not entitled to Miranda warnings or to consult with counsel before the police determine whether the arrestee will submit to chemical testing is no longer good law. He contends that the Legislature's recent enactment of HRS 291E-68 to impose criminal penalties for refusing to submit to testing changes the analysis, and that the police must now give an OVUII suspect Miranda warnings before reading the Implied Consent Form or obtaining the arrestee's decision regarding testing. We disagree. Won's argument appears to have been uniformly rejected by every court that has construed implied consent statutes which like Hawai'i's statute impose criminal sanctions for refusal to submit to testing. In Deering v. Brown, 839 F.2d 539 (9th Cir. 1988), the United States Court of Appeals for the Ninth Circuit considered Alaska's implied consent statute, which like Hawai'i's statute made the refusal to submit to testing a crime. Deering was prosecuted for OVUII and refusal to submit to breathalyzer testing, both full misdemeanors punishable by up to a year in prison, and his refusal to submit to testing was used as evidence supporting both charges. Id. at 541. The Ninth Circuit held that, regardless of criminalization, Deering's refusal to submit to testing was not a testimonial communication, it was not compelled, and as a nontestimonial communication, it was not 24

25 subject to Miranda protection. Id. at The court therefore held that use of evidence of Deering's refusal at trial did not violate Deering's rights under the Fifth Amendment or Miranda. Id. at 544. In holding that Deering's refusal was not a testimonial communication, the court started its discussion by noting that in the context of the OVUII charge, Deering's refusal to take the test was clearly nontestimonial conduct indicating a consciousness of guilt. Id. at 541. However, like Won, Deering argued that criminalizing the refusal to submit to testing changed the analysis and transformed the refusal into a "'testimonial' statement." Id. The Ninth Circuit rejected this argument. The court held that making refusal "an element of [a] crime, rather than merely evidence of an element of the crime (as it is in the case of the [OVUII] charge), does not transform the nature of the refusal itself." Id. at 542. The court explained that "Alaska's [criminal] refusal statute [was] closely analogous to a criminal contempt penalty for violating a court order to produce nontestimonial evidence." Id. The court concluded: Just as a defendant facing a court order to produce nontestimonial evidence[, such as a handwriting exemplar,] has no constitutional right to refuse the order, so Deering had no right to refuse the police request for a breathalyzer test. And just as the imposition of criminal contempt penalties does not transform the refusal to obey a court order regarding nontestimonial evidence into a testimonial communication with respect to the contempt charge, neither does the imposition by the State of Alaska of a criminal penalty for refusal to provide the state with the physical evidence of a breathalyzer test -- beyond the civil penalty of license revocation clearly condoned in Neville - qualitatively transform the refusal into testimony. Id. at 542 (internal citations omitted). Like evidence of the failure to obey a court order that is used to prove a criminal contempt charge, "evidence of Deering's refusal was not used for the testimonial or communicative content conveyed by his act of refusal[,]" but instead was "used to show that he had not performed the physical act of actually taking the test when 25

26 requested." Id. Because Deering's act of refusal was not used for its communicative content but simply to convey that he failed to take the test when requested, the court concluded that the act of refusal was not testimonial. Id. 19 The Ninth Circuit also addressed Deering's argument that evidence of his refusal to take the breathalyzer test was obtained by the police in violation of his Miranda rights. The court rejected Deering's Miranda claim. Id. at 544. The court held that the "protections of Miranda do not apply to nontestimonial evidence" and that Deering's refusal to take the test was nontestimonial. Id. In addition to Deering, it appears that every other court that has considered Miranda or Fifth Amendment claims in the context of implied consent statutes with criminal refusal provisions similar to Hawai'i's have rejected the claims. These courts have held that police inquiry into whether an OVUII suspect will submit to testing pursuant to such implied consent statutes does not constitute interrogation for Miranda purposes and that the refusal to submit to testing is not a testimonial communication. E.g., State v. Morale, 811 A.2d 185, (Vt. 2002) (holding that the police asking an OVUII suspect, "Do you wish to take the breath test?" did not constitute interrogation protected by Miranda); Rowley v. Commonwealth, 629 S.E.2d 188, (Va. Ct. App. 2006) ("[T]he 'fact of the refusal to 19 The court also held that Deering's refusal was not "compelled" for purposes of the Fifth Amendment by making the refusal to submit to testing a crime. Id. at The court explained that the choice presented to Deering of either producing the breathalyzer evidence or facing criminal sanctions for withholding it, was "no more impermissibly coercive than any order to produce physical evidence which is backed by the sanction of criminal contempt." Id. at 543. In addition, the court noted that the state does not directly compel a refusal. Id. "[T]he compulsion [that criminalizing refusal] increases is the compulsion to submit to the breathalyzer test, not the compulsion to refuse, and refusal is the conduct made criminal in the statute." Id. 26

27 perform tests that do not themselves constitute communicative or testimonial evidence is equally non-communicative and non- testimonial in nature[,]'" (citation omitted), and the refusal to submit to testing, "[a]n inherently nontestimonial act[,] does not become testimonial simply because the legislature chooses to compel it upon pain of imprisonment."); Svedlund v. Municipality of Anchorage, 671 P.2d 378, 381 (Alaska Ct. App. 1983) (holding that the request to submit to a breathalyzer test was not "interrogation" for purposes of Miranda); State v. Busciglio, 976 So.2d 15, (Fla. Dist. Ct. App. 2008) (concluding that asking OVUII suspect whether he was willing to take a breath test did constitute "interrogation" and that suspect's response was not "testimonial"); State v. Cramblet, No. A , 2002 WL , *5 (Neb. Ct. App. May 14, 2002) (holding that refusals to submit to testing obtained in the implied consent context are not testimonial or communicative and do not implicate the protections of Miranda). E. We join these other courts that have considered arguments similar to that raised by Won in the context of implied consent statutes with criminal refusal provisions similar to Hawai'i's and conclude that the police were not required to give Miranda warnings to Won before determining whether he would submit to testing. Considering the totality of the circumstances, we hold that the officer's reading of the Implied Consent Form to Won did not constitute interrogation, and that Won's response to the officer's actions by indicating his agreement to submit to breath testing was not a testimonial communication. We therefore conclude that Won's Miranda rights were not implicated or violated by the police action in obtaining his agreement to submit to a breath test. In analyzing Won's Miranda claim, we note the rather unique circumstances that surround the actions of the police in determining whether an OVUII arrestee will submit to testing. Not only are the police required by statute in every OVUII arrest 27

28 to determine whether the OVUII arrestee will submit to testing, but the police must also comply with specific requirements set forth in the statute in obtaining the arrestee's decision. In particular, a police officer must inform the arrestee that he or she may refuse to submit to testing, and if the suspect refuses, the officer must also inform the arrestee of the sanctions for refusal. See HRS 291E-11, -15. The record reflects that the police have opted to fulfill their statutory obligations by utilizing pre-printed forms which inform OVUII arrestees that under the implied consent statute, they are deemed to have consented to chemical sobriety testing; that they are not entitled to an attorney before submitting to testing; and that they may refuse to submit to testing, but that if they refuse, they are subject to sanctions, including up to thirty days of imprisonment. In sum, the actions and discretion of the police in determining whether an OVUII arrestee will submit to testing are limited and constrained by statute. The standardized procedures employed by the police, which not only informs the OVUII arrestee that the police inquiry is pursuant to statute but of the arrestee's right to refuse and the consequences of refusal, serve to diminish any coercion associated with the inquiry and eliminate concerns over an arrestee's will being overborne by the type of coercive police tactics which prompted the Miranda requirements. See Innis, 446 U.S. at 299; Miranda, 384 U.S. at 467. In addition, given the obligation of the police under the statute to determine whether an OVUII arrestee will submit to testing, the police are not seeking a response from the arrestee for its testimonial or communicative content or to incriminate the arrestee for refusing, but to comply with the statute. The statute is designed to induce an arrestee to submit to testing, not to refuse testing. In any event, the police inquiry does not seek testimonial evidence because it is the act or conduct of refusing, not the means by which the refusal is communicated, that violates the criminal refusal statute. 28

29 Under Ketchum, in determining whether "interrogation" for Miranda purposes has occurred, we must consider the totality of the circumstances and "focus upon the officer's conduct, the nature of the question (including whether the question is a 'routine booking question'), and any other relevant circumstance." Ketchum, 97 Hawai'i at 121, 34 P.3d at With respect to the officer's conduct, the record reflects that to determine whether Won would submit to testing, the officer followed the routine practice of reading the Implied Consent Form to Won, which advised Won of his rights and obligations under the implied consent law, in order to obtain Won's response. There is no suggestion that the officer used any coercive tactics in presenting the Implied Consent Form to Won. With respect to the nature of the question, including whether it was a routine booking question, the police inquiry into whether Won would submit to testing was required and controlled by statute. The inquiry is "highly regulated by state law" and is presented in a standardized form to OVUII arrestees, characteristics which prompted the United States Supreme Court to conclude that such inquiry did not constitute interrogation within the meaning of Miranda. Neville, 459 U.S. at 564 n.15. Moreover, the inquiry made by the police was not to secure testimonial communications or incriminating evidence, but was based on the statutory obligation imposed on the police to determine whether Won would submit to testing. See Morale, 811 A.2d at 189 (concluding that "[i]t would be anomalous... to suppress evidence gathered by asking the statutorily required question" regarding whether an OVUII suspect would submit to testing). Given the implied consent statutory scheme, Won's response to the inquiry was not sought for its testimonial content and was not testimonial in nature, but represented a nontestimonial act and nontestimonial conduct which the police by statute were required to determine. See Ketchum, 97 Hawai'i at 130, 34 P.3d at 1029 (stating that an "incriminating response" by 29